United States v. Ricardo Cornelius Beale ( 1971 )

ON PETITION FOR REHEARING

PER CURIAM:

The petition of the United States for rehearing is granted. The court recedes from its opinion insofar as it held that the underlying rationale of Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) required that we hold that entry secured by deception and without use of force is governed by 18 U.S.C. § 3109.

Before Sabbath it was recognized that entry obtained by ruse or deception was not a violation of § 3109, because no “breaking” was involved. Smith v. United States, 357 F.2d 486, 488 n. 1 (5th Cir. 1966) (ruse, no force, entry stated to be valid); Dickey v. United States, 332 F.2d 773 (9th Cir.) cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964) (ruse, no force, entry held legal); Leahy v. United States, 272 F.2d 487 (9th Cir.), cert. dismissed, 364 U.S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1960) (ruse, no force, entry held legal); Gatewood v. United States, 93 U.S.App. D.C. 226, 209 F.2d 789 (1953) (ruse, door partially opened, occupant sought to close it and bar officers, force applied, entry held illegal); Ponce v. Craven, 409 F.2d 621 (9th Cir. 1969), and People v. Scott, 170 Cal.App.2d 446, 339 P.2d 162 and People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821, under California statute similar to § 3109.

Sec. 3109 codifies a common law rule. Leahy, supra; Sabbath, supra, footnote 8. We are impressed by the discussion of the common law history in Leahy, revealing a long-standing distinction between entries where force is employed and those obtained by ruse or deception but without force.¹

We have reexamined the language and structure of the opinion in Sabbath itself. While disclaiming the necessity of force as an indispensable element of § 3109, the analysis is in terms of some force, albeit minimal, in the sense of physical action by the officer to remove the barrier that prevents his entry. Thus the court referred to entry through a closed but unlocked door, entry by passkey, opening the chain lock on a partially open door. And, in footnote 5, the Court referred to the usefulness of common and case law analogies of burglary — “lifting a latch, turning a door knob, unlocking a chain or hasp, removing a prop to, or pushing open, a closed door of entrance to the house— even a closed screen door.” 391 U.S. at 590, 88 S.Ct. at 1758.

Since Sabbath, the Seventh Circuit has reaffirmed the legality of the ruse entry. United States v. Syler, 430 F.2d 68 (7th Cir. 1970).

Bearing all these considerations in mind, we are forced to the conclusion that Sabbath, by footnote 7, left undisturbed the existent distinction between entry where some force is employed and entry where force is not an element at all. We are not without doubts. The “fundamental values” and “ongoing development” to which Sabbath refers, 391 U.S. at 589, 88 S.Ct. 1755, include a broadening recognition of the citizen’s right to privacy. Nevertheless we conclude that if entry by deception and wholly without application of force is to be brought within § 3109, it should be by the Supreme Court.

We do not view federal constitutional standards as requiring a different result. See Ker v. California, 374 U.S. 23 at 38, 83 S.Ct. 1623, 10 L.Ed.2d 726 (separate opinion of Justices Clark, Black, Stewart and White), Ponce v. Craven, supra, 409 F.2d at 626, and footnote 8 of Sabbath.

Rehearing granted. The conviction of appellant is affirmed.

1 . See also the concurring opinion of Judge Pope in Leahy, 272 F.2d at 491: “My search has failed to turn up any case equating a ruse or fraud with force.”